THIS FAR AND NO FURTHER
A Timeline of Events Surrounding the Radical Right's Attempt to Subvert American Democracy
Written and Compiled by Black Max
The Imperial Presidency:
The Occupation of Cuba Through FDR
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Cuba, the Phillippines, and the Spanish-American War
Cuba, the Phillippines, and the Spanish-American War
As the century came to a close, America's economy was booming, and its imperialistic ambitions were growing, fed by the need for markets, raw materials, and an increasing feeling among citizens and lawmakers that America was destined, perhaps by divine fiat, to become the world's next and strongest empire. The European empires of Britain and Spain were in decay, Germany and France's own ambitions were mired in ill-considered adventures in Africa and Asia, and America, protected by two oceans, was poised to consolidate the entire Western Hemisphere as its own. Key to controlling South America was the construction of a canal across the isthmus that joined North and South America, which, once completed, would connect the Atlantic and Pacific and allow American trade to explode. Henry Cabot Lodge, the patrician senator from Massachusetts, declared that a canal through what was then called Nicaragua (now called Panama) was a necessity -- and so was control of the Hawaiian Islands and Cuba. "The great nations are rapidly absorbing for their future expansion and their present defense all the waste places of the earth," Lodge declared. "It is a movement which makes for civilization and the advancement of the race. As one of the great nations of the world the United States must not fall out of the line of march."
Perhaps the most illustrative voice of the time was that of Theodore Roosevelt, an unabashed imperialist and white supremacist, who denouced the government's 1893 decision not to annex Hawaii as "a crime against white civilization," and viewed the Pacific islands as a barrier against the "yellow peril" of Asian migration. The hawkish Roosevelt saw an opportunity for expansion in Cuba, and, in an uneasy parallel to the 2003 adventure in Iraq, demanded that the US "rescue" the Cuban people from their Spanish rulers. Revolution was brewing in the small island, threatening American business interests there; it is likely that Roosevelt was more interested in rescuing those businesses than concerned for the plight of the native Cubans. An 1896 offer by the US to Spain to have Cuba recognized as a free and independent nation was rejected by Spain. That same year, Congressional leaders demanded that President Grover Cleveland declare war on Spain on behalf of Cuba. "We have about decided to declare war on Spain over the Cuban question," they told him; "conditions are intolerable." Cleveland refused. The congressman reminded him that they, not he, controlled the power to declare war; Cleveland retorted that while that was true, he said, "I will not mobilize the army." Cleveland's recalcitrance stymied Congress, but his term was soon over. Pro-business Republican William McKinley succeeded Cleveland, running in part on his determination not to go to war over Cuba. That soon changed after he entered office, in another parallel to 21st century America, when George W. Bush took office on a hands-off platform of foreign policy, only to enthusiastically invade two countries within three years.
In February 1898, a huge explosion sank the USS Maine, a battleship anchored in the Havana harbor. Though no evidence ever surfaced of sabotage or attack (later evidence proved that the explosion, whatever caused it, occurred within the ship), and though Spain had every reason not to provoke the Americans, on April 11, McKinley told Congress that he had evidence of a "submarine mine" destroying the ship, and war fever swept the nation. Spain was patently guilty of killing 300 American sailors, and there could be only one response. On April 20, both houses of Congress voted to declare war, and in an attachment to the declaration, stated that the aim of the war was a "free and independent" Cuba, with no intention of the US "exercis[ing] sovereignty, jurisdiction, or control" over the island. McKinley was authorized to use the full force of the US military to evict Spain from Cuba. Republican senator John Spooner lamented that "possibly the President could have worked out the business without war, but the current was too strong, the demagogues too numerous, and the fall elections too near." The victory was swift, but not easy. American troops bogged down in the swamps and wetlands of tropical Cuba, disease felled more soldiers than Spanish bullets, and the Cubans did not welcome the Americans with open arms and flowers, as many had predicted. But in some ways the parallels with Iraq break down. The Spanish accepted an armistice on August 12, withdrew from Cuba, and for the next six decades Cuba was, for all intents and purposes, an American territory. American troops remained in Cuba for years. Cuba was forced to adopt an American-style Constitution, though it was written to emphasize that the new nation would be perpetually under American control. And a law known as the Platt Amendment forced Cuba to agree to the permanent annexation of a chunk of land on its southeastern coast called Guantanamo Bay, where the US would build a huge naval installation, which would be used to control the entire Caribbean region. "There is, of course, little or no independence left Cuba under the Platt Amendment," wrote General Leonard Wood, the military commander of Cuba. US troops left Cuba in 1904, but returned in 1906, 1912, 1917, and 1920 to quash uprisings against the American domination of Cuba's economy. Rising Cuban nationalism led to the repeal of the Platt Amendment in 1934 as part of Franklin Roosevelt's "Good Neighbor" policy, though the naval base at Guantanamo would remain.
The day before Congress declared war on Spain in 1898, McKinley ordered Admiral George Dewey of the US Pacific Fleet to "Proceed at once to Phillippine Islands. Commence operations at once, particularly against the Spanish fleet. You must capture vessels or destroy." Dewey did so with gusto, and in 1899 Spain ceded the Phillippines to American control, along with the Caribbean island of Puerto Rico and the Pacific island of Guam. With Cuba, the Phillippines, Guam, and Puerto Rico under its control, America became the newest and most acquisitive of the world's empires. Unfortunately, the relatively simple matter of controlling Cuba would not repeat itself in the Phillippines, whose native population had long resisted Spanish control and resented the Americans supplanting their former masters. Both sides committed unspeakable atrocities. American officer Major Littleton Waller, court-martialed for shooting 11 unarmed Filipinos, testified that his commanding officer, General Jacob Smith, ordered him to "kill and burn, and said that the more he killed and burned, the better pleased he would be." Waller said that he asked Smith "to define the age limit for killing, and he replied, 'Everything over ten.'" In 1902, a senator asked an army general how he could defend the burning and slaughtering of entire villages within the rules of civilized warfare. "These people are not civilized," the general replied. The parallels with the current occupation of Iraq are obvious. So why the Phillippines? In itself, it was a rich source of mahogany, rice, coal, and other goods, but more importantly, it was a gateway to the vast Asian markets. "The Phillippines are ours forever," Senator Albert Beveridge declared in 1900, "and just beyond the Phillippines are China's illimitable markets. We will not retreat from either. The Pacific is our ocean. Where shall we turn for consumers of our surplus? Geography answers the question. China is our natural customer. The Phillippines give us a base at the door of all the East."
Beveridge's ambitions to economically conquer China would not come true quite as planned. The Boxer Rebellion of 1900-01, led by a group of Chinese nationalists demanding that all foreigners leave the country, was answered by a coalition of US, British, French, Russian, German, and Japanese troops that crushed the rebellion and imposed the Boxer Protocols on the country, mandating European and American occupation of the capital of Beijing and a huge indemnity payable to the occupiers for damages suffered during the rebellion. This precipitated a Constititional question. McKinley had sent 5000 troops to China while Congress was in recess, and defended his action as not waging war, but merely protecting US lives and properties in China. This excuse would be used again and again by McKinley's successors. While Congress dithered, McKinley was assassinated in 1901, and succeeded by his warlike vice president, Theodore Roosevelt. Roosevelt's two terms were marked by a paradoxical political philosophy, at least in modern terms; while a staunch defender of many American civil liberties and an ardent environmentalist, in foreign policy, Roosevelt was an ardent imperialist who conceded no brief to Congress to impede his militaristic ambitions. He simply ignored Congress in his many forays into Central and South America to bring that region under more complete American control. He simply snatched Panama from Colombian control in 1903, and the dazzled Congress meekly ratified his treaty with the newly created country, putting Panama under virtually complete American domination and clearing the way for the Panama Canal to be dug. "I took the canal zone and let Congress debate," Roosevelt later boasted, "and while the debate goes on the canal does also." In 1905 Roosevelt tried to work out an agreement with the Dominican Republic to pay off its $32 million foreign debt, but Congress warned him that only they, and not he, were legally able to negotiate treaties with foreign powers. While this was going on, Italy sent a warship to Santo Domingo to pressure the Dominicans to pay off their debt to Italy; in response, Roosevelt warned the Italians to stay out of "American" waters, and sent troops to occupy the capital. Once again Congress ratified both the treaty and the military incursion.
Roosevelt's successor, William Howard Taft, ignored his own expertise on Constitutional law when during his term he sent troops into Nicaragua, Honduras, Mexico, and Cuba, all to protect US business interests, and all without Congressional authorization, though he did admit that the Constitution required him to do so. And in 1914, Taft's scholarly successor, Woodrow Wilson, sent troops to Vera Cruz, Mexico, for what may be the flimsiest reason of any US military intervention. Some American sailors had been arrested by Mexican authorities for tearing up the local bars, and though the sailors were quickly released with apologies from Mexican president Victoriano Huerta, Wilson wasn't satisfied -- he demanded a 21-gun salute from the Mexicans to the sailors' vessels. Huerta refused, and Wilson asked Congress for authority to send troops. The House of Representatives agreed, but the Senate was still debating the issue when an impatient Wilson sent 5000 Marines to occupy Vera Cruz and Tampico. The Senate later ratified the incursion, noting that its purpose was not "to make war upon Mexico," but the Mexicans probably felt differently: Marine and Army troops occupied Vera Cruz and Tampico for seven months, a hundred Mexicans died in naval bombardments, and the Huerta government collapsed. (Irons fails to note that toppling Huerta was a goal of the Wilson administration, and used the Vera Cruz incident as a pretext for an incursion.)
World War I and the Suppression of Dissent
Wilson entered World War I three years after hostilities broke out in Europe, abandoning his vaunted neutrality position and demanding that Congress declare war. Wilson defends his demand because of German submarine attacks on US merchant vessels shipping war materials to England and its allies, failing to note that, by authorizing those shipments of military materials, the US was itself violating the rules of war and international law. "War fever" once again infected both the American citizenry and the media, and when Wilson went to Congress with his demands, Congress was quick to comply. American businessmen were also behind the war, mostly because of an economic recession plaguing America, and the $2 billion in war sales to the Allies, not to mention putting the country on a war footing, helped revive the flagging US economy.
The 1915 sinking of the ocean liner Lusitania enraged Americans, with Wilson denouncing the attack on innocent civilians, but in fact the ship was illicitly carrying a cargo of 5 million machine gun cartridges and over 1200 cases of artillery shells, hidden under a false manifest. Wilson ignored Secretary of State William Jennings Bryan's reminder that, under the rules of war, Germany had the right to prevent contraband from reaching the Allies: "A ship carrying contraband should not rely upon passengers to protect her from attack," he said. "It would be like putting women and children in front of an army." Bryan resigned after Wilson asked Congress for funds to expand the military and to build more warships. In 1916, Wilson won re-election on the slogan, "He Kept Us Out of War," but even before his inauguration, in March 1917 Wilson broke off diplomatic relations with Germany and asked for Congressional authority to order the arming of merchant ships. Wilson was incensed when a small group of senators led by Republican Robert LaFollette blocked the passage of the authorization. Nevertheless, on April 6, Congress overwhelmingly approved a declaration of war against Germany and its allies. Irons writes, "The fourth declaration of war by Congress became the first to embroil the United States in a global conflict, in which the rival imperial powers Great Britain and Germany were fighting for control of territories, markets, and raw materials around the world. The American government disclaimed any desire to expand its own empire during or after the war, but the lure of postwar foreign markets became a motivating factor in the plans of political and business leaders to exploit the power vacuums that followed the war's end." As with the wars with Mexico and Spain, the US declared war without the provocation of a military attack on American soil. Wilson's administration combated the citizens' resistance to entering into a European war with a barrage of propaganda to match the military buildup already well under way, and backed what he called in 1914 "the righteous conquest of foreign markets."
Wilson was also a fervent backer of the nascent League of Nations, less for reasons of keeping worldwide peace than the stability he hoped it would bring to world markets. In 1919, he told the Senate that the League was "the hope of the world," but faced a resolute opponent in Republican senator Henry Cabot Lodge, who said he would support the US's joining the organization only if 14 "reservations" were added to Wilson's proposal of a League "covenant" to the Treaty of Versailles. One of Lodge's amendments stated specifically that the US would not engage in any actions to preserve another nation's territorial boundaries, or to interfere with disputes between other nations, without the express authorization of Congress to send military forces. Lodge wanted to head off any presidential deployments that might be undertaken without Congressional authorization. Though Lodge's reservations were little more than reaffirmations of Constitutional guarantees, Wilson charged Lodge with wishing to "cut out the heart of this Covenant" and to essentially nullify the creation of the League. Wilson, a hardline backer of presidential authority in all matters of foreign policy and military deployment, found himself in a public battle with Lodge, and Lodge succeeded in getting 38 Senate colleagues to sign a proposal divorcing the League covenant from the Treaty of Versailles. Wilson refused to back down, and, in a ceremony full of pomp and circumstance, signed the treaty on June 28, 1919; Germany grudgingly signed ten days later, accepting the harsh reparations and territorial divisions of the victors, and the war was over. But not in the Senate, where Lodge led the opposition to ratification of the treaty. Wilson, never a physically active person, engaged in a grueling round-the-country tour to rally public support, and along the way collapsed on September 25 and suffered a debilitating stroke days later. While Wilson lay in the White House virtually paralyzed, his wife Edith and his advisor Colonel Edward House became in effect co-presidents, making decisions in his name while telling the public that Wilson was at the helm of the government. In November, the Senate refused to ratify the treaty, and in May 1920 voted to end hostilities between the US and Germany without the treaty. Wilson, somewhat restored to health, vetoed the resolution; not until 1921, when Warren Harding was president, did the government finally declare hostilities at an end.
The Wilson administration was ruthless in suppressing dissent against the war, which it termed "sedition." Wilson's close advisor Elihu Root said, "There are men walking around the streets...tonight who ought to be taken out at sunrise tomorrow and shot for treason." Particular targets included the members of the Socialist Party, whose membership and influence spiked after the US entered the war, and declared the war "a crime against the people of the United States." Its leader, Eugene Debs, had won over a million votes in the 1912 presidential elections, and Socialists were scoring victories in state and local elections across the country; ten Socialists were elected to (and ejected from) the New York State Assembly, in one example. In June 1917, the Socialists came out publicly against the military draft, which was quite unpopular with the citizenry; before the war's end, over 300,000 men were classified as draft evaders. Draft resistance prompted Congress to pass the Espionage Act in June 1917, which imposed heavy jail terms on anyone who refused, or caused to refuse, draftees to avoid service. The target of the law was not German spies, but Socialist organizers working to help young men stay out of the draft. The Socialists made the basis of their peaceful and lawful resistance the First Amendment, which gives citizens the right to peaceably assemble, the right of free speech, and the right to petition the government for redress of grievances. Wilson had no time for such legal niceties.
On August 13, 1917, a meeting of Socialists in Philadelphia was held to provide pamphlets for distribution to young men who had already passed their military physicals, advising them to exercise their Constitutional rights in protesting their draft status, including an invitation to come to Socialist party headquarters and sign a petition. The pamphlet was entitled "Long Live the Constitution of the United States," and was filled with references to the Constitution and the Bill of Rights. The pamphlet only advised potential draftees how to protest; it did not advocate physical resistance or refusal to submit to the draft. Federal authorities raided the party headquarters, arrested general secretary Charles Schenck and four others, and confiscated the pamphlets. Schenck and colleague Elizabeth Baer were convicted of "obstructing the recruiting and enlistment services of the United States," and sentenced to six months and three months, respectively, in jail. The two appealed their convictions to the Supreme Court.
The Court ruled unanimously against Schenck and Baer, with an opinion written by Chief Justice Oliver Wendell Holmes. Holmes had volunteered for military service during the Civil War and believed that "man's destiny is to fight;" he had little patience for what he saw as cowardly attempts to duck military service. He conceded that "in most places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights," but voided that caveat by writing, "the character of every act depends upon the circumstances in which it was written." According to Holmes, the fact that the US was at war negated the citizens' Constitutional protections: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing panic." Holmes's words are the best remembered, and the most widely misunderstood, of all of his judicial opinions. Holmes was not advocating any protection of free speech, rather, he was accusing Schenck and Baer, falsely, of inciting panic: "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." Holmes's phrase "clear and present danger" will be cited again and again in future judicial rulings, though the phrase is vague and without guidelines. "It is a question of proximity and degree," he wrote. Holmes also dismissed the defense argument that the government should prove Schenck's leaflet had prompted anyone to avoid the draft; "the tendency and the intent" of the leaflet was enough for Holmes. On such vague and formless interdictions do civil liberties fall.
Holmes also made a distinction between freedom of speech during peacetime and during war. Though the Constitution provides near-absolute freedom of speech regardless of time, place, and circumstance, Holmes ignored the 1866 Milligan ruling by justifying the government's implicit suspension of the First Amendment during the war. His "clear and present danger" ruling gave government enemies of dissent a powerful weapon to use, and they did just that. Ironically, Holmes reversed himself eight months later, in a case involving five Russian immigrants who belonged to an anarchist group and had denounced American military intervention in the Russian civil war (Wilson had sent 8000 troops to Russia in support of the "Whites," then fighting the "Reds" for control of the Russian government. The anarchists distributed leaflets of their own by printing them and dropping them out of tenement windows in Manhattan; they were charged under the Sedition Act for publishing "disloyal, scurrilous, and abusive language" about the government, and with attempting to "curtail...production" of munitions, though there was no evidence of any such efforts. The Supreme Court upheld their convictions, but Holmes wrote a fiery dissent that contradicted his opinion as written in Schenck: he now felt that he had gone too far in his "clear and present danger" pronouncement, and now wrote that speech must "immediately threaten immediate interference" with the government's lawful programs "that an immediate check is required to save the country." Holmes's dissent was ignored until 1969, when the Supreme Court finally abandoned the "clear and present danger" test in a case that involved a Ku Klux Klan member railing against blacks and Jews at a cross-burning rally, and being arrested for violating Ohio's "criminal anarchy" law. The conviction of Clarence Brandenberg was voided in a ruling that said only speech "directed to inciting or producing imminent lawless actions" could be restrained. Irons writes, "However much presidents after Wilson have subverted the Constitution by arrogating the war-making power to themselves, critical speech -- even the inflammatory act of burning the American flag -- has been protected from punishment by a Supreme Court that has studiously avoided the 'political question' of president actions that are akin to burning the Constitution."
The years between the First and Second World Wars saw a number of small-scale American military interventions in Central and South America, mostly in Nicaragua, when troops were sent repeatedly to put down rebellions against the conservative, US-friendly government by peasants and the middle class. Marines remained in Managua for years as a "legation guard" to protect the Conservative Party's government and US business interests such as United Fruit. In 1925, Calvin Coolidge's order to send US naval vessels to Managua met with stiff opposition in Congress, and in 1932 Congress refused to fund any more Marines in Nicaragua. The Marines were finally pulled out of Nicaragua in 1933 by Frankin Roosevelt.
FDR: The First "Imperial President"
On December 8, 1941, the House and Senate voted to declare war on Japan, with only one dissenting vote. Days later, following declarations of war against the US by Germany and Italy, the US reciprocated. No one then or now disputes the necessity of the US going to war after the attack on Pearl Harbor, but one action that challenged the Constitution was the government's round-up and internment of over 120,000 Americans of Japanese descent. None of these detainees were charged with a single crime, none had been involved in any sabotage against the US military or even dissent against the war; they were considered potential traitors merely because of their racial heritage, and locked up for years.
After the attack on Pearl Harbor, many Japanese-Americans, or Nisei, rushed to volunteer to serve in the US military. Newspapers on the West Coast, which contained the largest number of Asian-Americans, wrote editorials asking for tolerance and understanding towards Japanese-Americans, noting, as the Los Angeles Times wrote on December 8, that most were "good Americans, born and educated as such." It urged "no precipitation, no riots, no mob law." But in January 1942, representative Leland Ford of Los Angeles urged that "all Japanese, whether citizens or not, be placed in inland concentration camps." The Times reversed course two weeks later and said that "the rigors of war demand proper detention of Japanese and their immediate removal from the most acute danger spots" along the coast. Columnist Walter Lippman derided the Roosevelt administration's "unwillingness...to adopt a policy of mass evacuation and mass internment...Nobody's constitutional rights include the right to reside and do business on a battlefield." Roosevelt asked for recommendations from a panel of military officers, and the results were unabashedly racist. West Coast commander General John DeWitt reported, "The Japanese race is an enemy race, and while many second and third generation Japanese born on American soil, possessed of United States citizenship, have become 'Americanized,' the racial strains are undiluted." He later told a Congressional hearing, "A Jap's a Jap. It makes no difference whether he is an American citizen or not. I have no confidence in their loyalty whatsoever."
DeWitt's report cited no evidence whatsoever of crimes planned or committed by Japanese-Americans, but DeWitt twisted this lack of evidence into something sinister: "The very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken." On February 19, 1942, Roosevelt signs Executive Order 9066, authorizing Secretary of War Henry Stimson to designate military zones "from which any or all persons may be excluded." DeWitt first imposed a nighttime curfew on all Japanese-Americans on the West Coast, and oversaw the designation of all Japanese non-citizens as "enemy aliens." Some immigrants who held German or Italian citizenship were also included, though the order excluded any American citizen of German or Italian descent. DeWitt soon lifted the curfew on Germans and Italians, but not for Japanese-Americans. Congress then backed DeWitt's next step, "exclusion orders," that gave designated Japanese-Americans -- over 110,000 -- one week to pack (they were allowed a single suitcase) before being hauled off to "assembly centers" for processing and relocation. Most of the hastily built tar-paper and pine-board "relocation centers" were in California, Arizona, Utah, Idaho, and Wyoming, but two were in Arkansas. Most were in inhospitable desert locations or on Native American reservations. None were ever given legal hearings, much less charged with any crime; none had any legal recourse to challenge their detention in American concentration camps.
Three Japanese-Americans did attempt to challenge their internment. Gordon Hirabayashi was the American-born son of an "enemy alien" who ran a roadside fruit stand outside Seattle. Hirabayashi was an Eagle Scout and a devout Christian, who in 1937 registered with the draft board as a conscientious objector. In 1942, he went to the downtown FBI office and informed the agent on duty that he would not report to the "assembly center," telling the agent in a recorded statement that "he could not reconcile the will of God, a part of which was expressed in the Bill of Rights and the American Constitution, with the order discriminating against Japanese aliens and American citizens of Japanese ancestry." Hirabayashi was promptly arrested. Minoru Yasui was an Oregonian and an ROTC graduate who attempted eight times to join the Army but was rebuffed due to his ancestry. On March 28, 1942, he challenged the curfew by marching into the Portland police station and announcing that he was breaking curfew. He spent nine months in solitary confinement before his trial. Fred Korematsu, an Oakland shipyard welder, was turned down by the Navy for gastic ulcers in 1941. After the exclusionary order was issued, Korematsu decided to try to avoid detention by changing his name, altering his draft card, and even having plastic surgery on his eyes and nose. He was arrested in San Francisco in May 1942, where an ACLU lawyer, Ernest Besig, asked to represent Korematsu as a test case against the forced detentions. Korematsu agreed.
All three were given short shrift by the courts. Hirabayashi's judge, Lloyd Black, rejected the argument that Hirabayashi had had his First Amendment rights violated, and ranted about the Japanese being "diabolically clever...shrewd masters of tricky concealment among any who resemble them. With the aid of any artifice or treachery they seek such human camouflage and with uncanny skill discover and take advantage of any disloyalty among their kind." Black ordered the jury to find Hirabayashi guilty, which they did in ten minutes, and Hirabayashi was sentenced to six months in prison. Yasui was interrogated by Judge Alger Fee, who took over questioning of Yasui from the government prosecutor to hammer away at Yasui about Japanese culture and religion, of which Yasui, an American citizen and a Methodist, knew virtually nothing. Fee, presiding without a jury, found Yasui guilty and wrote in his ruling that he considered Yasui, regardless of his American citizenship and his background, "a citizen of Japan and subject to the Emperor of Japan" because of "the nativity of his parents and the subtle nuances of traditional mores engrained in his race by centuries of social discipline." Fee linked Yasui to the attack on Pearl Harbor, and gave him the maximum sentence of a year in prison and a $5000 fine. Korematsu was given a bit more respect by his presiding judge, Adolphus St. Sure. Korematsu, who had tried to join the Navy before Pearl Harbor, admitted to trying to evade capture after the exclusionary order went into effect, and said that "[a]s a citizen of the United States I am ready, willing, and able to bear arms for this country." St. Sure convicted Korematsu and sentenced him to five years' probation. His ACLU lawyer informed St. Sure that he would appeal, and though St. Sure set bail at $2500, military officers refused to allow Korematsu to attempt to post bail, but instead manhandled him out of the courtroom and took him to a detention camp. All three cases were appealed to the Supreme Court.
Solicitor General Charles Fahy argued before the Court that DeWitt was within the law with his exclusionary order, and Roosevelt's judgment that "military necessity" required the detention of so many Japanese-Americans should be respected. Fahy also reiterated the "racial characteristic" argument so familiar to those subjected to American wartime propaganda, asserting that no Japanese-Americans had ever been assimilated into society, and said that any such person "might assist the enemy." Hirabayashi's lawyer used the 1866 Milligan case, an argument that was tossed aside by former Army prosecutor Justice Felix Frankfurter, who said, "There's a lot in Milligan that will not stand scrutiny in 1943, a lot of talk that is purely political." The Court unanimously upheld Hirabayashi's conviction; writing for the Court, Justice Harlan Stone dodged the question of whether the exclusionary order was Constitutional, and finessed the question of Roosevelt's executive order going in the face of Congressional prerogatives by saying that Congress had ratified the order after the fact, ignoring the Constitutional principle that Congress makes laws and the president executes them. Stone had no wish to curtail Roosevelt's warmaking powers during a time of war, saying that Congress had given the president "wide scope" to conduct the war as he saw fit. He also dodged the issue of racial profiling by saying that during wartime, "the danger of espionage and sabotage" by Japanese-Americans overrode the Constitutional protections of the First Amendment, accepting Fahy's argument that "racial characteristics" constituted evidence of bad intent.
"Under his logic," writes Irons, "native-born Americans who had never left this nation's shores were equally suspect if their ancestors had come from a country that government officials considered hostile to the United States. However faulty this logic, it has been applied by later administrations to justify the 'watch lists' and FBI surveillance of Americans with family roots in Cuba, Iran, Iraq, and many other nations." One justice, Frank Murphy, found disturbing parallels between the American internment camps and German concentration camps. The Court's only Jewish member, Frankfurter, asked Murphy to consider whether his concerns might be read as "playing into the hands of the enemy." Murphy dropped his planned dissent, but retained the comparison in his concurrence.
Interestingly, in another test case of a Japanese-American, Mitsuye Endo, challenging her detainment, Fahy reversed his earlier contention that DeWitt's racial stereotyping was legal grounds and now argued that DeWitt's orders had been designed to "prevent incidents involving violence between Japanese migrants" and Caucasians who might attack them for being Japanese. (Such a shift in the argumentative focus presages the shift in rationales presented by the Bush administration between 2003 and 2006 for its invasion of Iraq.) Similarly, in the Korematsu case, the Court ruled 6-3 that Korematsu's conviction was legal. Fahy argued in that case that it was up to Korematsu to disprove the "hostility to the evacuees, which lay at the basis of the decision to impose detention." So much for espionage and sabotage -- now the internment of Japanese-Americans was for their own protection. Writing for the Court, Justice Hugo Black ignored the burden of proof Fahy tried to place on Korematsu, and returned to Stone's decision in the Hirabayashi case to opine that the threat from "disloyal" Japanese-Americans justified their internment. His opinion also brushed off any charges of racial discrimination. Murphy could not concur in this ruling. He wrote that the decision plunged the government "into the ugly abyss of racism," an argument supported by Justice Robert Jackson. Dissenting justice Owen Roberts wrote that the entire exclusionary order set a "cleverly devised trap to accomplish the real purpose of the military authorities, which was to lock him up in a concentration camp." And Jackson wrote, "The principle [of racial discrimination hidden in the rationale of military necessity] then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need."
The Court reversed the dismissal of Endo's habeas corpus petition, with William O. Douglas writing for the Court that military officials had "no authority to subject citizens who are considered loyal" to continued detention, dodging, but not reconciling, the stark differences with the Korematsu opinion. Since the War Department had ruled the day before the opinion was delivered that the internment camps would be closed and the "evacuees" returned to their homes, the issue was dodged. Their experiences led many Japanese-Americans and their children to march against the war in Vietnam, as well as launch a lobbying effort for Congress to make symbolic reparations for their losses of their freedom, their jobs, and their possessions. In 1988, Ronald Reagan signed the national apology and oversaw the payout of $20,000 for each of the 60,000 survivors of the camps. And in 1983, Hirabayashi, Yasui, and Korematsu filed suits asking for the reversal of their convictions. Their lawyers had uncovered documents from government officials, including Fahy, warning of the falsity of DeWitt's claims of a racial predilection to treason. "since this is not so," one Justice Department lawyer told Fahy, "it is highly unfair to this racial minority that these lies, put out in an official publication, go uncorrected" before the Court. Federal judges reversed all three convictions and sternly rebuked their predecessors, with Judge Marily Hall Patel writing for Hirabayashi that, while the Supreme Court decision "remains on the pages of our legal and political history," it stands "as a constant caution that in times of war or declared military necessity our institutions must be vigilant in protecting constitutional guarantees." And in 1998, President Bill Clinton placed the Presidential Medal of Freedom around Korematsu's neck. "A man of quiet bravery," Clinton said, "Fred Korematsu deserves our respect and thanks for his patient pursuit to preserve the civil liberties we hold dear."
One more case deserves examination. Eight German saboteurs landed on American soil in June 1942 with plans and materials to blow up bridges and tunnels in major American cities. Each one had lived for a time in America, spoke the language, and could blend in with the citizenry. All were captured by the end of the month, and turned over to government authorities. Roosevelt favored trying these "enemy combatants" in military courts-martial proceedings, but such proceedings required proof "beyond a reasonable doubt" of their intent to commit sabotage, and all eight had been captured before actually carrying out any of their plans. The government decided to try them before a military commission, which required a lower burden of proof and only a two-third majority for conviction. A body of seven military officers was commissioned in an executive order from Roosevelt, and they were tried behind closed doors in July 1942. They were represented by future Secretary of the Army Kenneth Royall and a team of lawyers, who by all accounts did an exemplary job on their behalf. Royall filed habeas corpus briefs on their behalf, claiming that Roosevelt had exceeded his authority in creating the military commission and insisting that the eight Germans deserved a trial in civil court. The Supreme Court ruled that Roosevelt indeed had such authority, and the commission convicted them and sentenced them all to death. Roosevelt commuted two sentences because of their cooperation in catching the others, and they served lengthy prison terms while the other six were executed in August. The Court then issued a ruling after the fact on what is known as the Quirin case, named for one of the defendants, that further demolished any claims to American legal proceedings by the eight.
Irons concludes, "The internment of Japanese Americans, held without charge or trial, and the trial of the German saboteurs, conducted behind closed doors, both show the fragility of the Constitution at war. And both episodes were echoed by the roundup and detention of several thousand Muslims from Middle Eastern countries following the terrorist attacks on the World Trade Center and the Pentagon on September 11, 2001, and by the imprisonment of several hundred suspected terrorists captured during the US invasion of Afghanistan that followed these attacks. As we shall see, the Supreme Court's rulings in 2004 on George W. Bush's claim of 'inherent' power to detain those prisoners, indefinitely and without charges, showed that the Hirabayashi and Quirin cases have been undermined as precedent by greater judicial skepticism of unbridled and unchecked presidential powers during wartime."
